MacKenzie Brown v. State of Arizona

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MACKENZIE BROWN, a single No. 20-15568
woman,
Plaintiff-Appellant, D.C. No.
2:17-cv-03536-
v. GMS

STATE OF ARIZONA; ARIZONA BOARD
OF REGENTS, DBA University of OPINION
Arizona, a constitutionally created
body corporate,
Defendants-Appellees,

and

RICHARD A. RODRIQUEZ; RITA
RODRIQUEZ,
Defendants,

v.

LIDA DEGROOTE,
Third-Party-Plaintiff.
2 BROWN V. STATE OF ARIZONA

Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, Chief District Judge, Presiding

Argued and Submitted February 4, 2021
Phoenix, Arizona

Filed January 25, 2022

Before: William A. Fletcher, Eric D. Miller, and
Danielle J. Forrest, * Circuit Judges.

Opinion by Judge Forrest;
Dissent by Judge W. Fletcher

SUMMARY **

Title IX

The panel affirmed the district court’s summary
judgment in favor of the University of Arizona in a Title IX
action brought by Mackenzie Brown, who suffered physical
abuse at the hands of her former boyfriend and fellow
University student at his off-campus residence.

The panel held that, under Davis ex. rel. LaShonda D. v.
Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999), Title IX
liability exists for student-on-student harassment when an

*
Formerly known as Danielle J. Hunsaker.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 BROWN V. STATE OF ARIZONA 3

educational institution exercises substantial control over
both the harasser and the context in which the known
harassment occurs. The panel unanimously held that the
control-over-context requirement was not met based on
Brown’s theory that the university had substantial control
over the context of Brown’s former boyfriend’s abuse of
other victims and failed to take proper action, and the
majority rejected the dissent’s theory that the boyfriend, a
university football player, had to have university approval to
live off campus and his housing was paid for with
scholarship funds that he received from the university.

Dissenting, Judge W. Fletcher wrote that, while the
physical location of the harassment can be an important
indicator of a school’s control over the “context” of alleged
harassment, the key consideration is whether the school had
disciplinary authority over the harasser in the setting in
which the harassment took place. Judge W. Fletcher wrote
that an off-campus residence paid with scholarship funds
that Brown’s former boyfriend received from the university,
and where students reside with permission of the school, is
such a setting. Accordingly, the university had control over
the “context” in which Brown was assaulted.

COUNSEL

Isabel M. Humphrey (argued), Hunter Humphrey & Yavitz
PLC, Phoenix, Arizona, for Plaintiff-Appellant.

Claudia Acosta Collings (argued), Assistant Attorney
General; Mark Brnovich, Attorney General; Office of the
Attorney General, Tucson, Arizona; Stephanie Elliott,
Assistant Attorney General, Office of the Attorney General
Phoenix, Arizona; for Defendants-Appellees.
4 BROWN V. STATE OF ARIZONA

OPINION

FORREST, Circuit Judge:

The Supreme Court has held that Title IX liability exists
for student-on-student harassment where an educational
institution “exercises substantial control over both the
harasser and the context in which the known harassment
occurs.” Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of
Educ., 526 U.S. 629, 645 (1999). The question here is
whether the second control-over-context requirement is met
where Plaintiff Mackenzie Brown seeks to hold the
University of Arizona (University) liable for physical abuse
that she suffered at the hands of her former boyfriend and
fellow University student at his off-campus residence.
Brown asserts that the control-over-context requirement is
met because the University had substantial control over the
context of her former boyfriend’s abuse of other victims and
failed to take proper action, even though it did not have
control over the context of her abuse. Our dissenting
colleague alternatively asserts that Davis’s control-over-
context requirement is met because the boyfriend, a
University football player, had to have University approval
to live off campus and his housing was paid for with
scholarship funds that he received from the University. We
reject both propositions and affirm the district court’s grant
of summary judgment in favor of the University.

I. BACKGROUND

A. Factual Background

Mackenzie Brown was physically assaulted by her
boyfriend, Orlando Bradford, while they were both
undergraduates at the University. Bradford, a university
football player, physically assaulted two other female
 BROWN V. STATE OF ARIZONA 5

students—Student A and Lida DeGroote—before assaulting
Brown. Brown sued the University, 1 alleging that it violated
Title IX by failing to respond to reports of Bradford’s prior
domestic abuse, giving Bradford an opportunity to abuse
Brown. Because Brown’s Title IX claim is based on the
University’s failure to respond appropriately to reports that
Bradford physically abused Student A and DeGroote, those
facts are outlined below.

1. Initial concerns arise about domestic violence
against Student A.

Bradford started dating Student A, a university softball
player, in fall 2015. Late one night in September 2015,
students informed a dormitory Resident Assistant (RA) that
they saw Student A and Bradford in a physical altercation in
a study room. When confronted by the RA, Bradford said
that he and Student A were just joking. The RA reported the
incident to the on-call Community Director and was told not
to call police. The RA created an electronic report of the
incident noting that he “felt like this might have started off
as a very serious physical and verbal altercation[.]”

Just before Thanksgiving, one of Student A’s teammates
escorted her to Bradford’s dorm room to collect some of
Student A’s belongings. Bradford refused to let Student A
get her things and screamed at her. Student A later admitted
to her teammate that Bradford had pushed her up against a
wall and choked her. When the teammate returned on
another occasion to get Student A’s belongings, Bradford

1
For simplicity, this opinion refers to all defendants collectively as
the “University.”
6 BROWN V. STATE OF ARIZONA

admitted to hitting Student A. The teammate did not report
this information until several months later.

During winter break, Student A told her family that she
broke up with Bradford. In January 2016, Student A’s
mother called softball coach John Candrea to discuss
concerns about Student A’s relationship and breakup with
Bradford, describing it as “not a good situation.” Candrea
relayed the conversation to Erika Barnes, the Senior
Associate Athletics Director and Deputy Title IX
Coordinator. Barnes arranged for Student A to see a school
psychologist.

2. University officials learn of potential abuse
against Student A and DeGroote.

In March 2016, Student A attended a team study hall
with a black eye that she claimed was caused by a door.
Another player also noticed fingerprints on her neck.
Concerned for Student A’s safety, two teammates told
Candrea about Student A’s black eye and what occurred
during the previously described trips to Bradford’s dorm
room. The next day, Candrea sent the two teammates to
speak with Barnes. They told Barnes about Bradford’s
earlier behavior towards Student A and Student A’s black
eye and bruises. The two teammates also told Barnes that
Bradford was dating and possibly abusing another student—
DeGroote.

Shortly after that meeting, Barnes met with Student A.
Barnes asked if Bradford had given her a black eye, which
Student A denied. Barnes encouraged Student A to visit the
Office of the Dean of Students to learn about available
university resources, including the procedure for filing a
complaint against Bradford. Student A agreed, and Barnes
accompanied her to meet with Susan Wilson, a Senior Title
 BROWN V. STATE OF ARIZONA 7

IX Investigator in the Office of the Dean of Students.
Although Wilson gave Student A information about filing a
complaint and other resources, Student A said she was no
longer seeing Bradford and was not concerned about him.
Wilson asked whether she had concerns during the
relationship, and Student A disclosed that Bradford had put
his hands on her neck once. Student A also mentioned that
she believed Bradford was living or staying with someone
named “Lida.”

Wilson told Christina Lieberman, a university
administrator, about the conversation with Student A and the
mention of DeGroote. Lieberman had an upcoming meeting
for an unrelated issue with DeGroote, and Wilson relayed
that DeGroote might be in a concerning relationship.
Although Wilson suggested that Lieberman raise the issue
with DeGroote, Lieberman declined, stating she would
encourage DeGroote to share information about Bradford on
her own. But DeGroote did not offer any information about
Bradford during the meeting, and Lieberman did not ask her
about the relationship.

In early April 2016, Bradford went to Student A’s dorm
room late at night while intoxicated and knocked on the door
and yelled for several hours. Candrea told Barnes about the
incident, and Barnes called Student A. Barnes also arranged
a meeting in her office with Student A and the University of
Arizona Police Department. According to the police report,
Student A recounted the event the night before and stated
that she and Bradford had “several physical fights” and that
Bradford choked her three or four different times. Student A
asked about obtaining a protection order. No criminal
charges resulted from this investigation.

After the meeting with Student A and the university
police, Barnes contacted Athletic Director Greg Byrne and
8 BROWN V. STATE OF ARIZONA

told him about the late-night dorm room incident. She did
not mention the physical abuse Student A described. The
head football coach, Richard Rodriguez, was away, so Byrne
and assistant coach Calvin Magee met with Bradford. They
told Bradford that underage drinking violated the team rules
and punished him for the violation. Magee did not know that
allegations of violence were made against Bradford.

Later in April 2016, the University issued a no-contact
order against Bradford for Student A. Because of the no-
contact order, Bradford was removed from his dorm room
and reassigned to a different room. Ultimately, Bradford
moved off campus with another football player.

The following month in May 2016, DeGroote’s mother
told Lieberman during a phone call that she was concerned
for DeGroote’s safety and referenced bruises on her arm.
Lieberman was silent in response.

3. Bradford assaults Brown.

Bradford started dating Brown in February 2016. He
became abusive toward her several months later in the
summer of 2016. Between June and mid-September, Brown
alleges that there were five to ten instances where Bradford
physically abused her. She primarily focuses on a two-day
period in September 2016.

On September 12, Brown went to Bradford’s off-campus
house after she got off work. She and Bradford got into an
argument, and Bradford physically assaulted her multiple
times by pushing her, pulling her hair, and hitting her. The
next day, they again got into an argument at Bradford’s
house, and Bradford physically assaulted Brown multiple
times. Brown suffered significant injuries.
 BROWN V. STATE OF ARIZONA 9

On September 14, Brown told her mother what had
happened, and her mother reported the abuse to police.
Bradford was arrested. 2 The next day, DeGroote’s mother
made an anonymous report to police that Bradford had also
abused her daughter.

The University placed Bradford on an interim
suspension after his arrest. Immediately upon learning of
Bradford’s arrest, Rodriguez also removed him from the
football team. Until the arrest, Rodriguez did not know about
Bradford’s violent behavior. Rodriguez knew only of the
April 2016 dorm-room incident where Bradford was “drunk
and banging on a door.” Rodriguez maintains that, had he
known of the earlier abuse, he would have dismissed
Bradford because he has a zero-tolerance policy for violence
against women. Bradford was expelled from the University
a month after his arrest.

B. Procedural History

Brown sued the University alleging, among other things,
that it violated Title IX by failing to appropriately respond
to reports that Bradford physically abused Student A and
DeGroote. 3 The University moved for summary judgment,
and the district court entered judgment in favor of the
University because, although it was “undeniable that [the
University] exercised substantial control over Bradford,”
Brown “ha[d] not offered any evidence that [the University]

2
The parties represent that Bradford was convicted of felony
aggravated assault and domestic violence and was sentenced to five
years’ imprisonment.
3
DeGroote sued separately, and her case was settled. See DeGroote
v. Ariz. Bd. of Regents, No. 2:18-cv-0310-SRB (D. Ariz. 2018).
10 BROWN V. STATE OF ARIZONA

exercised control over the context in which her abuse
occurred.” Brown timely appealed.

II. DISCUSSION

We review the district court’s grant of summary
judgment de novo. Karasek v. Regents of Univ. of Cal.,
956 F.3d 1093, 1104 (9th Cir. 2020). We must determine,
viewing the evidence in the light most favorable to the
nonmoving party, whether there are any genuine issues of
material fact and whether the University is entitled to
judgment as a matter of law. Id.; Fed. R. Civ. P. 56(c).

A. Title IX Liability

Title IX provides: “No person in the United States shall,
on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination
under any education program or activity receiving Federal
financial assistance.” 20 U.S.C. § 1681(a). The Supreme
Court has recognized an implied private right of action under
Title IX to seek monetary damages. Davis, 526 U.S. at 639.
However, the Court has also made clear that an educational
institution that receives federal funds “may be liable in
damages under Title IX only for its own misconduct.” Id. at
640. Title IX does not create respondeat superior liability.
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 285
(1998). Where an educational institution does not directly
violate Title IX through an official policy or other direct
action, the institution is liable in damages for another actor’s
discriminatory conduct only if it exercises control over that
actor and an institution official with authority to take
corrective action has actual knowledge of the misconduct
and responds with deliberate indifference. Id. at 290; Davis,
526 U.S. at 642–44.
 BROWN V. STATE OF ARIZONA 11

In Gebser, the Supreme Court applied this principle to
teacher-on-student misconduct and held that the school
district was not liable for a teacher’s sexual abuse of a
student about which it had no knowledge. 524 U.S. at 291.
There was no need for the Supreme Court to address the
school district’s control over the teacher or the context in
which the abuse occurred because these requirements were
clearly met. The key issue was whether the school district
engaged in misconduct by failing to properly respond to
known abuse. See id.

In Davis, the Supreme Court addressed student-on-
student misconduct and provided guidance about the control
an educational institution must exercise for liability to arise
in this context. 526 U.S. at 643–45. Title IX has a targeted
objective: It prohibits discrimination that occurs “under any
education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). Education “program or
activity” is defined as “the operations of” an educational
institution subject to Title IX. Id. § 1687. The Court
explained that this text “cabins the range of misconduct that
the statute proscribes . . . based on the [institution]’s degree
of control over the harasser and the environment in which
the harassment occurs.” Davis, 526 U.S. at 644 (emphasis
added). That is, because the statute only addresses
misconduct that occurs “‘under’ ‘the operations of’ a
funding recipient, the harassment must take place in a
context subject to the school[’s] . . . control.” Id. at 645
(internal citation omitted).

This second element of control is required because an
educational institution is not liable under Title IX for others’
misconduct that it cannot remedy. Id. at 644. Deliberate
indifference to discrimination—the institutional misconduct
that must be proven if the institution is not itself engaging in
12 BROWN V. STATE OF ARIZONA

misconduct—can occur only if the educational institution
can intervene or take some remedial action. See id. In other
words, there can be no institutional liability unless the
educational institution has notice and the ability to take
corrective action, which is premised on “substantial control
over both the harasser and the context in which the known
harassment occurs.” Id. at 645 (emphasis added).

To ensure that this direct-liability requirement is met, it
is well established that a plaintiff alleging a Title IX claim
arising from student-on-student harassment or assault must
establish five elements:

(1) “[T]he school . . . exercise[d] substantial
control over both the harasser and the
context in which the known harassment
occur[red]”;

(2) “[T]he plaintiff . . . suffered harassment
that is so severe, pervasive, and
objectively offensive that it can be said to
deprive the plaintiff of access to the
educational opportunities or benefits
provided by the school”;

(3) “[A] school official with authority to
address the alleged discrimination and to
institute corrective measures on the
[school’s] behalf must have had ‘actual
knowledge’ of the harassment”;

(4) “[T]he school must have acted with
‘deliberate indifference’ to the
harassment, such that the school’s
response to the harassment or lack thereof
 BROWN V. STATE OF ARIZONA 13

[was] clearly unreasonable in light of the
known circumstances”; and

(5) “[T]he school’s deliberate indifference
. . . subject[ed the plaintiff] to
harassment.”

Karasek, 956 F.3d at 1105 (internal quotation marks and
citation omitted); Davis, 526 U.S. at 640, 644, 648, 650.

B. Brown’s Theory

Applying this standard, the district court granted
summary judgment to the University on the first element.
The district court held that even though the University
exercised substantial control over Bradford because he was
a student athlete, the University did not have substantial
control over the context or environment where Brown’s
assault occurred—Bradford’s private, off-campus residence.
Brown argues this was error because she does not have to
show that the University controlled the context of her abuse,
only that the University controlled the context in which it
improperly failed to act, i.e., Bradford’s assaults on Student
A and DeGroote. Brown contends that the University’s
deliberate indifference towards Bradford’s abuse of these
earlier victims gave him an opportunity to abuse her. While
Brown’s anger with how the University handled the reports
of Bradford’s abuse of other students is understandable, her
argument stretches the text of Title IX and the implied
private action that the Supreme Court has recognized too far.

Davis requires that Brown prove the University
controlled the context in which her abuse occurred—not just
the context of Bradford’s other assaults. 526 U.S. at 644–45.
Where an educational institution has no control over the
abuse the plaintiff suffered, such abuse does not occur
14 BROWN V. STATE OF ARIZONA

“‘under’ ‘the operations of’” the institution. Id. at 645
(quoting 20 U.S.C. §§ 1681(a), 1687). And if this
requirement is not met, the institution has not “expose[d] its
students to harassment or cause[d] them to undergo
[harassment] under the [institution]’s programs.” Id.
(internal quotation marks omitted).

Brown does not argue that the University controlled the
off-campus environment in which she was assaulted. The
extent of the University’s involvement in Brown’s abuse was
allowing Bradford to remain a student after receiving reports
that he was physically abusive to other women. Bradford
abused Brown in a private, off-campus residence
unconnected to any school activity. Even though the abuse
may not have occurred absent Bradford and Brown’s shared
connection to the University, not everything that happens
between fellow students occurs “under [the operations of]”
the institution. 20 U.S.C. §§ 1681(a), 1687. It would be
unreasonable to conclude that Title IX gives educational
institutions adequate notice that accepting federal education
funds imposes on them liability for what happens between
students off campus, unconnected to any school event or
activity. See Davis, 526 U.S. at 640.

Brown’s effort to circumvent Davis’s control-over-
context requirement by focusing on the University’s
knowledge of and failure to address Bradford’s prior abusive
behavior fails. She argues that her claim survives summary
judgment because the University knew about Bradford’s
abuse of Student A and DeGroote and these attacks occurred
in a context that the University controlled. In making this
argument, she relies on the statement in Davis that “the
school must exercise ‘substantial control over both the
harasser and context in which the known harassment
occurs.’” Id. at 645 (emphasis added). In her view, the proper
 BROWN V. STATE OF ARIZONA 15

focus of the control inquiry is “the context of the harassment
that the university is being accused of failing to correct,” not
her abuse specifically. This argument misreads the
precedent.

The Supreme Court used the phrase “known harassment”
to reemphasize its earlier discussion limiting Title IX
liability to situations where the University has actual
knowledge of abuse. Davis, 526 U.S. at 645–46. The Court
noted that it previously rejected a negligence standard,
finding that it was insufficient to hold an educational
institution “liable for its failure to react to teacher-student
harassment of which it knew or should have known.” Id.
at 642 (citing Gebser, 524 U.S. at 283). Instead, the Court
adopted a deliberate-indifference standard for harassment of
which an educational institution has actual knowledge. Id.;
see also Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d
613, 621–22 (6th Cir. 2019) (holding a Title IX plaintiff
cannot establish deliberate indifference based on harassment
against other victims). The reference to “known
harassment”—a call-back to the Court’s rejection of a
negligence standard—does not open the door to satisfying
the control-over-context element by reference to events
other than those involving the plaintiff.

C. The Dissent’s Theory

Our dissenting colleague also rejects Brown’s theory as
going too far, and instead argues that “the key consideration”
in determining whether the educational institution controlled
the context where misconduct occurred “is whether the
school has disciplinary authority over the harasser in the
setting in which the harassment takes place.” That is,
according to the dissent, where a school has disciplinary
authority over the harasser, it necessarily has control over
the context in which harassment occurs. Brown has not
16 BROWN V. STATE OF ARIZONA

advanced this theory, and in fact expressly disclaimed it,
arguing that “[t]he question is whether the University had
sufficient control over the context in which [Brown] alleges
that it failed to act, not whether it had sufficient control over
the context in which she was later attacked.” Regardless, the
dissent’s reasoning conflates Davis’s two separate control
requirements (control over the harasser and control over the
context of the harassment) into one (control over the
harasser). See 526 U.S. at 645.

There is no dispute that the University exercised
substantial control over Bradford. But that is not enough.
Davis set out two separate control elements that are related
to two separate legal requirements. The control-over-
harasser requirement arises from the limitation that
educational institutions be held liable only for their own
misconduct. See id. at 644. The control-over-context
requirement arises from the limitation that Title IX addresses
discrimination occurring only under an “education program
or activity receiving Federal financial assistance.” 20 U.S.C.
§ 1681(a). That a person subject to an educational
institution’s rules or authority engages in misconduct does
not necessarily mean that his misconduct occurs under that
institution’s education program. Stated another way, not
everything that a person subject to a school’s disciplinary
control does can be attributed to the school’s operations.
This is particularly true of student conduct.

The dissent focuses primarily on two facts in asserting
that the University controlled Bradford’s off-campus
residence: (1) under the football team rules, Bradford had to
have coach approval to live off campus; and (2) Bradford’s
University scholarship paid for his off-campus rent. The
second fact is easily dismissed. That a student’s off-campus
housing is paid for with scholarship funds awarded by his
 BROWN V. STATE OF ARIZONA 17

school does not make his residence part of the school’s
“operations.” 20 U.S.C. §§ 1681(a), 1687. There is an
appreciable difference between the degree of control an
educational institution exercises over on-campus housing
and off-campus housing, regardless of how it is paid for. And
there is no indication in the record that by receiving
University scholarship funds to cover his living expenses,
Bradford’s residence was deemed University property or
that the University had regulatory control over his residence
like it does over on-campus housing.

The University’s ability to prevent Bradford from living
off-campus is a closer question but still insufficient to
establish that the University controlled Bradford’s off-
campus residence. The relevant football team rule provided:
“Living off-campus is subject to approval by head coach and
position coach. Off-campus subject to moving back on
campus.” The head football coach testified that players were
allowed to live off-campus after their freshman year “as long
as they were doing okay academically and, you know, not
being irresponsible as far as making their appointments and
practices and meetings and everything else on time.” 4
Undoubtedly, this rule, among others, gave the University
disciplinary authority over Bradford—the first control
requirement—but it does not follow that it also gave the
University control over Bradford’s off-campus residence in
the way that it controls its own property or the context of
team or school activities regardless of where they occur. See

4
The dissent asserts that the team rule permitted football players to
live off-campus after their freshman year only “on condition of good
behavior.” The record, however, establishes only that this rule was
intended to regulate players’ academic performance and team
obligations. The head coach also could not recall ever exercising his
authority under this rule and requiring a player to move back on campus.
18 BROWN V. STATE OF ARIZONA

Davis, 526 U.S. at 646 (finding that a school “retains
substantial control over the context in which the harassment
occurs” when the abuse “takes place while the students are
involved in school activities or otherwise under the
supervision of school employees”). Disciplinary authority
over a student is not enough by itself to establish that the
school controls the locations or contexts where the student is
found.

A couple examples further demonstrate the point.
Imagine the student who grew up in Tucson and opted to live
at home with his parents while attending the University and
playing on the football team. He would be subject to the
same player rule requiring permission to live off campus, but
allowing him to live at home with his family does not mean
that the University now controls the context of the family
home. The University’s control is limited to the student. And
Title IX is not limited to higher education. So, also imagine
a middle schooler who is subject to a student code of conduct
that prohibits harassment of other students. She has a
birthday party at her house over the weekend and violates
the school’s code of conduct. The school may have the
authority to discipline her for her offending conduct that
occurred outside of school hours and school activities, but
that does not mean that the school controlled the context of
her birthday party at her home sufficient to establish Title IX
liability against the school. To be faithful to Title IX and
Davis, there must be something beyond student-focused
disciplinary authority that renders the context where the
challenged harassment occurred part of the school’s
“operations.” 526 U.S. at 645. To conclude otherwise
eviscerates Congress’s express requirement that conduct is
actionable only if it occurs “under an[] education program or
activity receiving Federal financial assistance.” 20 U.S.C.
§ 1681(a).
 BROWN V. STATE OF ARIZONA 19

The cases that the dissent cites in arguing that the
University’s control over Bradford is determinative of its
control over his off-campus residence are inapposite because
they all present circumstances where the institution had
control over the context in which the harassment or abuse
occurred separate from its control over the harasser. In Doe
v. University of Illinois, which was decided before Davis, the
plaintiff high-school student alleged she was subjected to
“an ongoing campaign of verbal and physical sexual
harassment perpetrated by a group of male students at the
school.” 138 F.3d 653, 655 (7th Cir. 1998). The Seventh
Circuit held that she successfully stated a Title IX claim
based on student-on-student harassment where the alleged
harassment occurred “while the students are involved in
school activities or otherwise under the supervision of school
employees.” Id. at 661. Doe does not explain how school
employees supervised the “self-styled ‘posse’ of male
students” who harassed the plaintiff, but it is clear from the
opinion that the school had some control over the context of
Doe’s harassment because it occurred during the school day
or under the school’s supervision. See id. at 655.

In Simpson v. University of Colorado Boulder, the
University football team brought prospective players to
campus to recruit them. 500 F.3d 1172, 1180 (10th Cir.
2007). The coaching staff chose player-hosts for the recruits
who “knew how to ‘party’ and how ‘to show recruits a good
time,’” and female students were chosen to serve as
“Ambassadors” for the recruits. Id. at 1173, 1180. The
player-hosts took the recruits to a female student’s off-
campus apartment where players and recruits sexually
assaulted the plaintiffs. Id. at 1180. This was not simply a
private, off-campus party. It was part of recruiting activities
that the football coaching staff facilitated and encouraged to
show recruits a “good time.” Indeed, at least one recruit
20 BROWN V. STATE OF ARIZONA

knew that the purpose of going to the off-campus apartment
was “to provide recruits another chance to have sex.” Id.
Similarly, in Roe ex rel. Callahan v. Gustine Unified School
District, the plaintiff student was physically assaulted and
harassed by fellow students at a school-sponsored football
camp. 678 F. Supp. 2d 1008, 1012–14 (E.D. Cal. 2009). In
these circumstances, the educational institutions had control
over the context of the plaintiffs’ abuse and harassment
because it occurred during team or school activities.

Finally, in Weckhorst v. Kansas State University, the
plaintiff got intoxicated at an off-campus fraternity event,
and a fellow student who was a designated driver for a
different fraternity sexually assaulted her in his vehicle and
his off-campus fraternity house. 241 F. Supp. 3d 1154, 1159
(D. Kan. 2017). The district court concluded that the plaintiff
sufficiently alleged that the University controlled the context
in which her abuse occurred because, among other things,
the University’s website described fraternities “as ‘Kansas
State University Organizations’”; promoted fraternities; and
had the authority to regulate fraternities, including fraternity
parties. Id. at 1167.

Unlike these prior cases, this case has none of the indices
that the University controlled the context where Brown was
abused. Brown was not assaulted on school property or
during a school-related activity, and she did not go to
Brown’s off-campus apartment for a school-related purpose.
Nor did the University have regulatory control over
Bradford’s off-campus apartment like Kansas State
University had over fraternities in Weckhorst. For example,
the team rule that allowed coaching staff to force players to
live on campus as a disciplinary tool did not give the coaches
the right to enter or inspect the players’ homes or otherwise
control what occurred at the residence. Any control that the
 BROWN V. STATE OF ARIZONA 21

University had related to Bradford’s residence arose only
from its control over him.

III. CONCLUSION

Title IX’s elements, as delineated by the Supreme Court,
are not met where an educational institution controlled the
context where abuse against other victims occurred but not
where the plaintiff was abused. Likewise, a Title IX claim
fails where the educational institution has substantial control
over the harasser but no control over the context where the
harassment occurred. We do not dispute that control over the
harasser is a key component of a Title IX claim, but it is not
sufficient. Conflating the control-over-context requirement
into the control-over-harasser requirement expands Title
IX’s implied private right of action beyond what Title IX can
bear. 5

AFFIRMED.

W. FLETCHER, Circuit Judge, dissenting:

University of Arizona football player Orlando Bradford
repeatedly assaulted fellow student Mackenzie Brown over
the course of several months in the summer and early fall of
2016. Bradford’s last assaults were extremely violent. They
took place on two successive nights in September, during
Bradford’s sophomore year, in an off-campus house where
Bradford was living with other university football players.

5
Because we conclude that Brown failed to establish the University
“exercise[d] substantial control over . . . the context in which the known
harassment occur[red],” Davis, 526 U.S. at 645, we need not address her
additional arguments on appeal.
22 BROWN V. STATE OF ARIZONA

Bradford’s athletic scholarship paid his living expenses.
Bradford and the other football players were living in the off-
campus house only because the coaches of the university
football team had given them permission to do so.
Bradford’s and the other players’ permission to live off
campus was conditioned on good behavior.

At the time of Bradford’s assaults on Brown, university
officials, including Title IX administrators, had knowledge
of repeated prior violent assaults by Bradford on two other
female undergraduates during his freshman year. Despite
their knowledge, those officials did not take steps to ensure
that Bradford would not be a danger to Brown and other
students. Undisputed evidence in the record shows that if
those officials had informed Bradford’s coaches of his
assaults on the other students, Bradford would have been
immediately thrown off the football team, would have lost
his athletic scholarship, and would have been expelled from
the University by the end of his freshman year, months
before his assaults on Brown.

Brown sued the University under Title IX of the
Education Amendments of 1972, 20 U.S.C. §§ 1681–1688,
contending that an appropriate response to Bradford’s
repeated assaults on the two other female students would
have prevented Bradford’s assaults on her. The panel
majority holds that the University is not liable under Title IX
because Bradford assaulted Brown in an off-campus house,
and that the University therefore did not exercise control
over the “context” in which Bradford attacked Brown.

I strongly but respectfully dissent.
 BROWN V. STATE OF ARIZONA 23

I. Factual Background

The majority provides an accurate but truncated
description of the factual record.

Orlando Bradford enrolled as a freshman at the
University of Arizona in the fall of 2015. He played on the
football team and attended the University on an athletic
scholarship. During his time at the University, Bradford
physically assaulted three women: Student A, Lida
DeGroote, and plaintiff Mackenzie Brown. He assaulted
Student A multiple times during his freshman year, choking
her repeatedly. He assaulted DeGroote over 100 times
during his freshman year. He assaulted Brown somewhere
between five and ten times in the summer after his freshman
year and in the fall of his sophomore year.

University Title IX officials had learned of Bradford’s
physical assaults on Student A and DeGroote in the winter
and spring of his freshman year, months before he assaulted
Brown. As a result of his assaults on Student A, university
officials issued a “no contact” order forbidding Bradford to
contact Student A either on or off campus. But they failed
to tell Bradford’s football coaches of his assaults on Student
A and DeGroote.

Beginning in the fall of his sophomore year, Bradford’s
coaches gave him permission to live off campus. On two
successive nights that fall, in the off-campus house which
was paid for by the University and where he was living with
the permission of his coaches, Bradford dragged Brown by
her hair, locked her in his room, and scratched, hit, kicked
and choked her. It is undisputed that if university officials
had told Bradford’s coaches of his assaults on Student A and
DeGroote, the coaches would not have given him permission
to live off campus. Indeed, if his coaches had been informed,
24 BROWN V. STATE OF ARIZONA

Bradford would have lost his football scholarship, would
been removed from the football team, and would have been
expelled from the University by the end his freshman year.

A. Student A and Lida DeGroote

Student A was a member of the softball team. She and
Bradford met as high school students during an athletic
recruiting trip to the University in January 2015. The
University first learned about Bradford’s violence against
Student A in the fall of 2015, at the start of their freshman
year. On September 21, 2015, four female students saw
from the window of another building Bradford and Student
A physically fighting in a dormitory study room. They
knocked on the Resident Adviser’s (“RA”) door and told
him what they had seen. The RA went to the other building
to investigate. The RA talked with Bradford alone while
Student A waited outside in the hallway. Bradford told the
RA that the two of them were “just joking” and that Student
A “was just mad at [him] regarding a situation that happened
earlier.” The RA contacted the on-call University
Community Director who instructed the RA not to call the
police.

An incident report was filed in “Advocate,” the
University’s case management system. According to the
report, the RA “felt like this may have started off as a very
serious physical and verbal altercation between resident
Bradford and resident Student A, but then may have turned
into somewhat of a joke.” After speaking to Bradford and
Student A together, the Community Director wrote in a
report that they told him that they were “just joking” and
“agreed that they w[ould] not engage in this type of behavior
in the future.” The Community Director never talked to
Student A alone.
 BROWN V. STATE OF ARIZONA 25

In late 2015, Student A’s parents learned of her abusive
relationship with Bradford. A campus police report
recounted that Student A’s parents had told Student A’s head
softball coach about Bradford’s violence against her after
they had broken up in November 2015. The coach recounted
in a deposition that Student A’s mother had called him in
January 2016 and had told him that she and Student A’s
father were concerned about her daughter’s relationship with
Bradford, and that they were relieved that they had broken
up. The coach maintained in his deposition that he was
unaware of any abuse and that Student A’s mother did not
tell him in her January call what had disturbed them about
Student A’s relationship with Bradford.

In January 2016, after his conversation with Student A’s
mother, the softball coach called Erika Barnes, the
University’s Title IX liaison to the Athletics Department. In
her deposition, Barnes recounted that the coach informed her
that “Student A and her boyfriend broke up,” that it was “not
a good situation,” and that Student A was “really upset.”
Barnes told the softball coach that she wanted Student A to
meet with a school psychologist. Barnes told the
psychologist about the call and said that she wanted Student
A to meet with her.

Neither Barnes nor the softball coach contacted anyone
on the football coaching staff.

Sometime after January, Bradford and Student A began
to see each other again. On March 22, 2016, Student A
arrived at a study hall with a black eye and finger marks on
the side of her neck. Two of her teammates went to talk to
the softball coach. They told him that in the fall of 2015
Bradford had pushed Student A up against a wall, put his
hands around her neck, and choked her. They told him that
Student A now had a black eye and finger marks on her neck.
26 BROWN V. STATE OF ARIZONA

One of them recounted in a declaration that the coach told
them that he knew about the situation with Student A and
Bradford, and about the efforts to keep Student A away from
him.

When Student A arrived at softball practice that day, the
assistant softball coach saw the black eye and overheard
conversations between the players saying that Student A’s
boyfriend may have been responsible. He asked Student A
what happened. She replied that had been hit by a door. The
assistant softball coach called Barnes later that same day.

On March 23, the next day, the head softball coach told
Student A’s two teammates that they should meet with
Barnes and tell her everything they had told him. The two
teammates met with Barnes that afternoon and told her what
had happened the previous fall, including that Bradford had
choked Student A. They told Barnes about Student A’s
black eye and the finger marks on her neck. They told
Barnes that Bradford had told Student A that if she reported
the abuse, he would send compromising pictures of her “to
her mother, grandmother, and everyone.”

The softball teammates also told Barnes that they heard
that Bradford was hitting another girlfriend, Lida DeGroote,
and that DeGroote often had bruises and marks all over her
body. They reported hearing that in front of others Bradford
had kicked and thrown DeGroote’s dog into another room.
They told Barnes that Bradford’s roommate and best friend
from high school had told them that Bradford “had a violent
past,” that Bradford was not afraid “to hurt someone,” and
that “people need to be careful.” Barnes took detailed notes
of her conversation with Student A’s teammates.

On March 24, Barnes called Student A into her office
and asked her about her black eye. Student A reported that
 BROWN V. STATE OF ARIZONA 27

she was clumsy and had run into a door. That same day,
Barnes accompanied Student A to another building to meet
with Susan Wilson, a Title IX investigator in the Dean of
Students Office, to “hear about [her] options” if she ever
decided to file a complaint against Bradford. Barnes sat in
on the meeting with Wilson. Barnes testified in her
deposition that she told Wilson about Student A’s black eye
and her story that she had been hit by a door. Wilson
testified in her deposition that she did not see a black eye and
did not ask Student A about a black eye. Barnes and Wilson
both testified that Student A told Wilson that Bradford had
choked her. Wilson asked no follow-up questions about the
choking.

When Barnes returned to her office after the meeting
with Wilson and Student A, she photocopied her notes from
her interview with Student A’s two softball teammates the
previous day. She sent the notes to Wilson and to Kendal
Washington White, Assistant Vice President for Student
Affairs and Dean of Students.

In her meeting with Barnes and Wilson, Student A had
told them that Bradford might be living with a student named
“Lida.” Barnes and Wilson thought that Student A might
have been referring to Lida DeGroote because, as Wilson
stated in her deposition, “Lida’s an unusual name.” On
several occasions during 2016, Barnes had been in contact
with DeGroote and her mother about various things,
including credits for an internship. Wilson knew that
Chrissy Lieberman, Associate Dean of Students, was
“actively meeting and working with Lida DeGroote”
concerning academic matters. Wilson went to Lieberman’s
office and told her that a student by the name of Lida had
been mentioned by another student and that DeGroote might
be in a concerning relationship. Lieberman met with
28 BROWN V. STATE OF ARIZONA

DeGroote the next day, but the focus of the meeting was an
academic matter. Lieberman tried indirectly to get
DeGroote to talk about any other problems she might be
having, but she did not ask DeGroote directly about her
relationship with Bradford. DeGroote did not volunteer any
information.

Neither Barnes nor Wilson, nor anyone in the Dean of
Students Office, contacted anyone on the football coaching
staff about the reports of Bradford’s violence against Student
A and DeGroote.

On Saturday night, April 9, Bradford went to Student A’s
dorm room. He was intoxicated. For nearly two hours, he
banged on Student A’s door yelling at her to let him in.
Student A refused to open the door and repeatedly told
Bradford to leave. Bradford finally left about 1:30 a.m.
Student A’s softball coach called Barnes the next morning to
tell her about the incident. Barnes contacted Student A and
asked if she wanted to call the police. When Student A
replied that she did, Barnes called the University of Arizona
Police Department. Later that day, a university police
officer met in Barnes’s office with Student A and Barnes.
Student A told the police officer about the door-banging
incident, and about Bradford’s previous assaults. In the
presence of Barnes, she told the officer that on at least three
occasions Bradford had choked her to the point that she
could not breathe. Student A asked the officer how to get a
protective order from the county court.

Later that same day, Barnes called Greg Byrne, the
University Athletic Director. Barnes testified in her
deposition that she told Byrne only about the door-banging
incident. Barnes did not tell Athletic Director Byrne about
Student A’s black eye, the finger marks on her neck, or the
 BROWN V. STATE OF ARIZONA 29

prior choking incidents. Nor did Barnes tell Byrne about the
reports that Bradford had been assaulting DeGroote.

Byrne told Barnes that he would contact the head
football coach, Richard Rodriguez. Because Rodriguez was
traveling that day, Byrne spoke to Bradford’s position coach
instead. The position coach and Athletic Director Byrne met
with Bradford. They discussed the door-banging incident
and gave Bradford “a lecture on underage drinking.” The
position coach later talked to head coach Rodriguez about
the door-banging incident. The position coach testified in
his deposition that Bradford received three days of what he
characterized as “physical punishment” for violating the
team’s underage drinking rules.

On April 11, 2016, Wilson issued a no contact order to
Bradford. In relevant part, the order provided: “You are
prohibited from having any contact with Student A . . . This
directive applies to both on and off campus contact.”
Bradford was reassigned to another dorm for the remainder
of his freshman year. The football team’s Player Rules
required freshmen to live in a university dorm. DeGroote
testified in her deposition that even though Bradford was
supposed to have been living in Student A’s dorm, in fact he
had been staying at DeGroote’s house on “most nights” from
January to April. Instead of moving to his assigned room in
the new dorm, Bradford moved into a teammate’s off-
campus house for the remainder of his freshman year.

On May 10, 2016, Lida DeGroote’s mother spoke on the
telephone with Associate Dean Lieberman about
DeGroote’s academic matters. During the conversation,
DeGroote’s mother brought up the issue of DeGroote’s
safety. DeGroote’s mother did not mention Bradford by
name. She testified in her deposition that she told
Lieberman: “Now we have another issue with her safety. I
30 BROWN V. STATE OF ARIZONA

believe you saw the bruises on her when she was in there.”
The reference was to bruises Lieberman should have been
able to observe during a meeting with DeGroote a month
before. Lieberman did not respond. DeGroote’s mother
testified it was “just crickets,” an “uncomfortable” silence.

B. Mackenzie Brown

Bradford started dating MacKenzie Brown in February
2016 while they were both freshmen. He started to
physically abuse Brown during the summer of 2016 while
she was at the University for summer session. By that
summer, Bradford had moved into an off-campus house that
he shared with other members of the football team. Bradford
needed the permission of his coaches to move to an off-
campus house after his freshman year. Head football coach
Rodriguez testified in his deposition that football players
other than freshmen were governed by Player Rule 15. The
Rule provided, “Living off-campus is subject to approval by
head coach and position coach.” Rodriguez testified that he
could require players to move back on campus if they
behaved inappropriately. He testified: “I . . . kind of hung
that over them, like, ‘Listen, if you are not being responsible
in your appointments or whatever, then we can tell you to,
you know, move back on campus.’”

Brown testified in her deposition that Bradford
physically abused her between five and ten times during the
course of their relationship. She testified that Bradford
“would get upset about little things.” On one occasion
during the summer, Brown was in Phoenix visiting her
father. Bradford texted Brown, but Brown did not see the
text right away. Bradford did not believe her when she
replied later that she had not seen the text. “He told me to
leave where I was in Phoenix, even though he wasn’t there.
And I was like: ‘No I’m not leaving. I’m in Phoenix.
 BROWN V. STATE OF ARIZONA 31

You’re in Tucson.’” In August 2016, Bradford gave Brown
a black eye: “He was upset about something, and I wasn’t
saying anything back. . . . And he said: ‘You don’t care.’
And he tried to like slap my hand off of my face, or
something, or slap my face. And he hit my eye and then I
had a black eye.” On another occasion, while they were at a
Goodyear Tire store, Brown was scrolling through her
contacts on her phone. Bradford saw the name “Josh” and
asked her “Oh, who is that?” Brown told Bradford that Josh
was her work supervisor. “That made him upset. And then
he like grabbed my arm and dug his nails into my arm. I
have a scar.”

Bradford sent threatening texts to Brown. After Brown
refused to leave where she was in Phoenix, he texted her,
“I’m going to show you what happens to people who
disrespect me.” On another occasion, when Brown refused
to use a phone application to share her location with him,
Bradford texted her, “You’re going to make me break your
fucking face.”

Bradford’s abuse escalated in the fall. On September 12,
2016, Bradford purported to believe that Brown had
scratched his car. Bradford and Brown were at Bradford’s
off-campus house where he lived with other football players.
Brown tried to go home, but Bradford would not let her. She
testified in her deposition:

[H]e like was trying to pull me in and I didn’t
want to go, so I was like trying to stop myself
like plant my feet, and he pulled me into the
house. And then [he] open[ed] the door, and
then he pushed me on the floor. . . . And then
he was yelling. And then he slapped me and
I hit my head on the cupboard[.] . . . [A]nd
then he started like dragging me by my hair
32 BROWN V. STATE OF ARIZONA

to the stairs. . . . And then like he was
choking me . . . on the staircase. . . . Then he
said, . . . “Say goodbye to your mom. You’re
never going to talk to her again.” . . . [T]hen
he took me upstairs . . . and he like locked the
door and took off his shirt. And he said:
“You’re about to make me real mad.” And
. . . he was like hitting me up side my head
and pushing me on the ground and hitting on
my arms and my legs.

Bradford later took Brown to Safeway to get Tylenol.
Brown asked to go home, but Bradford refused. Brown
spent the night at Bradford’s house. Bradford took her home
the next morning.

Brown was at Bradford’s house again the next day,
September 13. Bradford went to Wendy’s with some
friends. Brown told him she did not want anything, but
Bradford brought her back a “Frosty.” Brown said she did
not want it, so Bradford put it in the freezer. Another
football player who lived in the house told Brown that it was
“messed up” that she would not eat the Frosty, so Brown
responded, “Okay, I’ll take a bite.” Bradford became angry,
saying, “You listen to other people now instead of me.”
Brown said she was going to call an Uber and go home.
Bradford refused to allow her to go upstairs to get her things.
Brown went out to the sidewalk and called Uber. Bradford
came outside and forced her into his car. “[T]hen he kind of
like smacked me in my face and then like grabbed my hair,
and then my nose started bleeding.” Brown went back inside
to clean up the blood. Bradford looked through Brown’s
phone and found Brown’s brother’s name with a phone
number from a different area code than the rest of Brown’s
family’s phone numbers. Bradford refused to believe it was
 BROWN V. STATE OF ARIZONA 33

her brother’s number. She testified: “And so then he got
upset, and that’s like when he started hitting me again.”
Bradford finally fell asleep.

Brown stayed awake most of the night, waiting until she
could call her mother. After Bradford dropped Brown off at
her house in the morning on his way to football practice,
Brown called her mother. Her mother called the police and
Athletic Director Byrne.

Brown went to her family doctor on September 16. She
presented with:

burst blood vessels in the eye, bruising on the
lower part of the neck, likely concussion,
intractable acute post-traumatic headache,
neck pain from direct trauma (kicking and
hitting) as well as from strangulation, upper
back pain, left rib pain with breathing and
movement, left upper abdominal pain,
abdominal contusions, . . . head tenderness
from hitting a cabinet and being punched in
the head during the attack, scratches on her
forehead, upper arm contusions, circular
contusions circling the base of her neck, and
contusions with tenderness over her left rib
area.

Bradford was arrested on September 14. He received an
interim suspension notification that same day “due to [his]
behavior that has been determined to present a substantial
risk to members of the university community.” When
DeGroote’s mother learned that Bradford was in police
custody, she left an anonymous tip with the Tucson Police
Department that Bradford had been abusing DeGroote.
Bradford was expelled from the University on October 14.
34 BROWN V. STATE OF ARIZONA

Bradford was criminally charged based on his assaults on
Brown and DeGroote, and he pleaded guilty to felony
aggravated assault and domestic violence. In November
2017, Bradford was sentenced to five years in prison.

C. Proceedings in the District Court

DeGroote and Brown each sued the University under
Title IX in federal District Court for the District of Arizona.
Their cases were assigned to different judges.

The district judge in DeGroote’s case denied DeGroote’s
and the University’s cross-motions for summary judgment.
DeGroote v. Ariz. Bd. of Regents, No. CV-18-00310-PHX-
SRB, 2020 WL 10357074, at *12 (D. Ariz. Feb. 7, 2020).
The judge held that DeGroote sufficiently established that
the University exercised substantial control over the
“context” of Bradford’s abuse of DeGroote, including abuse
that took place off-campus. Id. at *8 (“Bradford’s violence
against women, regardless of geographic location, not only
threatened the safety of Plaintiff and Student A, but
threatened the safety of the larger University community.”).
The parties settled before trial.

The district judge in Brown’s case granted summary
judgment to the University. In the view of the judge,
Brown’s claim failed because none of the abuse, including
the assaults on September 12 and 13, was in a “context”
under the control of the University. The judge concluded:

Plaintiff does not allege that any of her abuse
occurred on campus or in any other setting
under Defendants’ control. While it is
undeniable that Defendants exercised
substantial control over Bradford, Plaintiff
has not offered any evidence that Defendants
 BROWN V. STATE OF ARIZONA 35

exercised control over the context in which
her abuse occurred. Defendants therefore
cannot be liable for Plaintiff’s harassment
under Title IX.

(Emphasis added.)

Brown timely appealed.

II. Discussion

A. Title IX

Subject to exceptions not relevant here, Title IX provides
that “[n]o person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance.”
20 U.S.C. § 1681(a). Deliberate indifference by an
educational institution to student-on-student sexual
harassment supports a private suit for money damages under
Title IX.

The key Supreme Court case is Davis ex rel. LaShonda
D. v. Monroe County Board of Education, 526 U.S. 629
(1999). The plaintiff in Davis had been sexually harassed by
another student at school. Id. at 646. The Court held that
the school could be liable for failing to respond to complaints
by plaintiff and other students about the conduct of the
harasser. Id. at 646–47. The Court limited a school’s
liability for student-on-student sexual harassment, however,
to circumstances where the school “exercises substantial
control over the harasser and the context in which the known
harassment occurs.” Id. at 645. Justice O’Connor wrote for
the Court:
36 BROWN V. STATE OF ARIZONA

The statute’s plain language confines the
scope of prohibited conduct based on the
recipient’s degree of control over the
harasser and the environment in which the
harassment occurs. If a funding recipient
does not engage in harassment directly, it
may not be liable for damages unless its
deliberate indifference “subject[s]” its
students to harassment. That is, the
deliberate indifference must, at a minimum,
“cause [students] to undergo” harassment or
“make them liable or vulnerable” to it.
Moreover, because the harassment must
occur “under” the operations of” a funding
recipient, the harassment must take place in
a context subject to the school district’s
control.

Id. at 644–45 (alterations in original) (emphasis added)
(citations omitted).

The Court in Davis did not define “context,” but its
meaning may be inferred from several passages in its
opinion. First, the Court explained that where the
harassment occurs “during school hours and on school
grounds,” the misconduct takes place “under” an “operation”
of the school. Id. at 646. Second, the Court cited with
approval a Seventh Circuit case in which the court had
“[found] liability where [the] school fail[ed] to respond
properly to ‘student-on-student sexual harassment that takes
place while the students are involved in school activities or
otherwise under the supervision of school employees.” Id.
at 646 (quoting Doe v. Univ. of Ill., 138 F.3d 653, 661 (7th
Cir. 1998)) (emphasis added). Finally, the Court
summarized the applicable law: “We thus conclude that
 BROWN V. STATE OF ARIZONA 37

recipients of federal funding may be liable for “subject[ing]”
their students to discrimination where the recipient is
deliberately indifferent to known acts of student-on-student
sexual harassment and the harasser is under the school’s
disciplinary authority.” Id. at 646–47 (emphasis added).

These passages make clear that while the physical
location of the harassment can be an important indicator of
the school’s control over the “context” of the alleged
harassment, the key consideration is whether the school has
disciplinary authority over the harasser in the setting in
which the harassment takes place. See id. at 644
(“Deliberate indifference makes sense as a theory of direct
liability under Title IX only where the funding recipient has
some control over the alleged harassment. A recipient
cannot be directly liable for its indifference where it lacks
the authority to take remedial action.”) (emphasis added).
That setting could be a school playground. But it could
equally well be an off-campus field trip, an off-campus
research project in a laboratory not owned by the school, or
an off-campus residence for which the school pays the rent
and where students reside with permission of the school. If
the harassment occurs in such a setting—that is, in a
“context” over which the institution has substantial
control—the institution may be held liable for deliberate
indifference under Title IX even though the harassment takes
place off the physical property of the institution.

A number of courts have concluded that liability attaches
under Title IX when harassment occurs off the physical
location of the campus, so long as the educational institution
has sufficient control over both the “harasser” and the
“context” in which the harassment takes place.

In Simpson v. University of Colorado Boulder, 500 F.3d
1172, 1173 (10th Cir. 2007) (Hartz, McKay & Gorsuch, JJ.),
38 BROWN V. STATE OF ARIZONA

two female undergraduates, Lisa Simpson and Anne
Gilmore, were raped in Simpson’s off-campus apartment by
members of the university football team and by high school
students who were being recruited for the team. The court
held that the rapes took place in a “context” over which the
university had control, even though they took place in
Simpson’s off-campus apartment. The court wrote:

The CU football team recruited talented high-
school players each fall by bringing them to
campus. Part of the sales effort was to show
recruits “a good time.” To this end, recruits
were paired with female “Ambassadors,”
who showed them around campus, and
player-hosts, who were responsible for the
recruits’ entertainment. At least some of the
recruits who came to Ms. Simpson’s
apartment had been promised an opportunity
to have sex.

Id.

Reversing the district court’s grant of summary
judgment to the University, the court held that plaintiffs had
presented evidence sufficient to support a jury verdict under
Title IX. Id. at 1185. Viewing the evidence in the light most
favorable to plaintiffs, the court held that the University had
a policy of showing recruits “good time”; that the rapes of
Simpson and Gilmore in Simpson’s off-campus apartment
were caused by the University’s “failure to provide adequate
supervision and guidance to player-hosts chosen to show the
football recruits a ‘good time’”; and that “the likelihood of
such misconduct was so obvious” that the University’s
failure “was the result of deliberate indifference.” Id.
at 1173.
 BROWN V. STATE OF ARIZONA 39

In Roe ex rel. Callahan v. Gustine Unified School
District, 678 F. Supp. 2d 1008, 1011 (E.D. Cal. 2009),
plaintiff was a high school student who was sexually
assaulted and verbally harassed by several upper-class
teammates during a school district’s summer football camp
held off campus. The school district moved for summary
judgment on his Title IX claim, arguing that it lacked
substantial control over the “context” of the harassment
because “none of the allegedly harassing acts took place on
‘school grounds.’” Id. at 1016, 1025. The district court
denied the motion, finding that the school district had
substantial control over the context of the harassment
because the football camp was (1) sponsored and promoted
by the district’s coaches; (2) the players were transported on
district buses and supervised on the bus by district
employees; and (3) the camp was governed by a district
Administrative Directive that outlined supervision ratios and
disciplinary procedures. Id. at 1025.

In Weckhorst v. Kansas State University, 241 F. Supp.
3d 1154 (D. Kan. 2017), aff’d 918 F.3d 1094 (10th Cir.
2019), plaintiff Sara Weckhorst was a student at Kansas
State University (“KSU”). She alleged in her complaint that
she attended an off-campus fraternity event where she
became intoxicated. Id. at 1159. J.F., a fellow student at
KSU and a designated driver for his fraternity, took plaintiff
into his truck and raped her in front of about fifteen KSU
students, some of whom took photographs and videos. Id.
J.F. then drove her back to his off-campus fraternity house
and assaulted her on the way. Id. When they arrived at the
fraternity house, he took her to the fraternity’s “sleep room”
and raped her again. Id. He left her there, naked and passed
out. Id. When she woke up, she was being raped by J.G.,
another KSU student and a member of the fraternity. Id. She
left the room and went downstairs. J.G. followed her onto
40 BROWN V. STATE OF ARIZONA

the patio and raped her again. Id. Photographs and videos
were later circulated widely on social media. Id. at 1159–
60.

The University refused to discipline J.F. and J.G. on the
ground that the rapes had taken place off campus. Id. at
1160–63. After the rapes and after the University’s refusal
to discipline J.F. and J.G, Weckhorst suffered from
symptoms of post-traumatic stress disorder. Id. at 1163. She
stopped going to classes, withdrew from her math course,
and lost her scholarship. Id. at 1163–64. She brought suit
under Title IX, alleging deliberate indifference by KSU. Id.
at 1164.

The University moved to dismiss under Rule 12(b)(6) on
the ground that it had no control over the context in which
the off-campus rapes occurred. Id. at 1165. The district
court disagreed, holding that the University had sufficient
control over the context to warrant liability under Title IX.
Id. at 1168. In support of its holding, the court cited a
number of factual allegations in the complaint: (1) KSU
fraternities are open only to KSU students and are described
on the University’s website as “Kansas State University
Organizations”; (2) the director of the fraternity at issue was
a university instructor; (3) the University promotes its
fraternities to prospective students and parents; (4) the
University has five employees specifically charged with
supporting and advising fraternities and sororities; (5) the
University has the authority to regulate fraternities,
including promulgating rules for parties; and (6) the Dean of
Students suspended the fraternity where the rapes occurred
for its use of alcohol at the party when plaintiff was raped.
Id. at 1167. In sum, the court found that while KSU may not
have had “complete control over the alleged assailants at the
fraternity house or the fraternity parties, [Weckhorst’s]
 BROWN V. STATE OF ARIZONA 41

allegations do reflect that KSU had substantial control over
both the assailants and the fraternity.” Id. at 1168 (emphases
in original).

B. University Control Over the “Context” in Which
Bradford Assaulted Brown

The University does not argue that it was unaware of
Bradford’s assaults on Student A and DeGroote, or that it
had no control over the “context” of those assaults. Rather,
it argues that it had no control over the context of Bradford’s
assaults on Brown. Brown argues that because the
University had control over the context of Bradford’s known
harassment of Student A and DeGroote, the University’s
failure to take action violates Title IX without respect to
whether the University had control over Bradford’s off-
campus housing. That is, Brown argues that because the
University had control over the context of Bradford’s
assaults on Student A and DeGroote, it necessarily had
control over the context of Bradford’s subsequent assaults
on other university students including Brown, regardless of
where in the community the assaults took place.

I would not go so far, and the facts of this case do not
require me to do so. It is clear, on the facts of this case, that
the University had control over the “context” in which
Bradford assaulted Brown.

Bradford was subject to Player Rules specific to football
players. The Player Rules required all freshmen team
members to live in university dorms. Bradford flouted the
rules during his freshman year. On most nights from January
to early April 2016, he stayed at DeGroote’s off-campus
house. After he was assigned to a different dorm from
Student A in mid-April, Bradford moved off campus
entirely, into a house shared with another football player.
42 BROWN V. STATE OF ARIZONA

Had university officials or football staff members chosen to
investigate, they could have enforced those Rules, requiring
Bradford to live in university dorms during the entirety of
his freshman year.

More important, and directly relevant to Brown’s claim
under Title IX, after he finished his freshman year, Bradford
moved into another off-campus house with other members
of the football team. The University paid for that off-campus
housing and allowed Bradford to live off campus only with
the permission of his coaches and on condition of good
behavior. Head coach Rodriguez specifically testified in his
deposition that Player Rule 15 required permission to live
off campus and that permission was conditioned on good
behavior. Rodriguez testified in his deposition that the
football team had a zero-tolerance policy for violence
against women. He testified that a player’s violence against
women would lead to immediate dismissal from the team.
Rodriguez testified that the “first time” he heard about
Bradford “doing anything physically violent to his
girlfriend” was the day he kicked him off of the team.
Rodriguez said that if he had known earlier, he “certainly
would have kicked him off earlier.” Had University Title IX
officials informed Rodriguez of Bradford’s assaults on
Student A and DeGroote during his freshman year, Bradford
would never have been permitted to live off campus, and his
September 12 and 13 assaults on Brown at his off-campus
house would never have occurred.

Brown submitted an expert report to the district court.
The expert concluded that in failing to inform head coach
Rodriguez of the assaults on Student A and DeGroote, the
University failed to fulfill its responsibilities under Title IX.
Among other things, the expert wrote that the University had
 BROWN V. STATE OF ARIZONA 43

virtually complete control over Bradford, including control
over where he lived:

Student-athletes, especially those at large
Division I “Power 5” conference schools, are
very much under the control of the
University. They are told where they can
live, where and when they will be places—
including practices, games, housing, meals,
and study time. They are given clear
expectations for behavior when not in school
or at practice, and they are certainly under the
financial control of the University and the
Athletics department. Having worked with
and trained thousands of coaches and athletes
at all levels from high school to college to
Olympians, I can state unequivocally that any
belief that UA [the University of Arizona]
has no control over Bradford is misplaced
and uninformed.

University administrators knew about the September
2015 fight between Bradford and Student A in the dorm
study room; knew that Bradford had been abusing Student
A, including choking her three times; knew that Student A
had a black eye and finger marks on her neck in March 2016;
knew that Student A wanted a court-issued protective order
against Bradford in April 2016; knew that the University had
issued a no-contact order to Bradford; and knew about
reports that Bradford lived with and frequently hit DeGroote.
They never told Athletic Director Byrne or head coach
Rodriguez any of this.

The district judge ruled against Brown on the ground that
she failed to “allege that any of her abuse occurred on
44 BROWN V. STATE OF ARIZONA

campus or in any other setting under Defendant’s control,”
and that Brown had not “offered any evidence that
Defendants exercised control over the context in which her
abuse occurred.” The district judge was mistaken.

Brown both alleged and introduced evidence that the
University had substantial control over the “context” in
which Bradford assaulted her on September 12 and 13. She
introduced Player Rule 15, which allowed Bradford to live
off campus only with permission of his coaches; she
introduced evidence that Bradford had a football scholarship
that paid his living expenses; she introduced Rodriguez’s
testimony that Bradford’s permission to live off campus was
conditioned on good behavior; she introduced Rodriguez’s
testimony that if he had known of his assaults on Student A
and DeGroote he would have thrown Bradford off the team,
with the result that he would have lost his scholarship and
been expelled from the University; and she introduced expert
evidence, consistent with Rodriguez’s testimony, that the
University had extensive control over Bradford, including
control over where he could live. In her response to the
University’s motion for summary judgment, Brown
specifically pointed out to the district judge the University’s
control over where Bradford lived. She wrote, “Coach
Rodriguez permitted his players to reside off-campus only
on good behavior, ‘subject to moving back on campus’ if
more supervision was required but, as discussed above, he
was kept out of the loop.” Pl.’s Resp. to State Def’s Mot. for
Summ. J., at 8.

Brown thus produced extensive evidence that Bradford’s
violent assaults on September 12 and 13 were in a “context”
over which the University exercised substantial control. The
University not only “exercise[d] significant control over the
 BROWN V. STATE OF ARIZONA 45

harasser,” but also over the “context” in which the
harassment took place. Davis, 526 U.S. at 645, 646.

Conclusion

Brown seeks “to hold the [University] liable for its own
decision to remain idle in the face of known student-on-
student harassment in its school[].” Davis, 526 U.S. at 641
(emphasis omitted). Because the University had significant
control not only over Bradford, but also over the “context”
in which he assaulted Brown, I would reverse the decision
of the district court.

I strongly but respectfully dissent.